Despite the slow progress of the habeas petitions — largely through Justice Department obstruction, as I have explained before — time does not stand still, and new rulings continue to be made. On Monday, I published another article — “Judge Denies Habeas Petition of an Ill and Abused Libyan in Guantánamo” — about the 48th case to be decided, that of a Libyan prisoner, Omar Mohammed Khalifh, whose habeas petition was denied on April 20, but was not reported anywhere, except on the website of the Center for Constitutional Rights.

I remain impressed that the judges involved have ruled in the prisoners’ favor in 34 of the 48 cases (that’s 70 percent of the total), because, as I explained in my original introduction to “Guantánamo Habeas Week,” they have “revealed the alarming flimsiness of most of the material presented by the government as evidence. Primarily, the judges have exposed that the government has been relying, to an extraordinary extent, on confessions extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners, either in Guantánamo, the CIA’s secret prisons, or proxy prisons run on behalf of the CIA in other countries.”

However, as I analyzed the judges’ unclassified opinions in the eight cases above (four won by the prisoners, and four by the government), I had reason to sharpen my critique of those who lost their habeas petitions. In my introduction, I stated that I was “troubl[ed by] the justifications for continuing to hold the majority of the prisoners who lost their habeas petitions, as they reveal that the basis for doing so — the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks and maintained as a justification by President Obama — was, and is a deeply flawed document, which fails to distinguish between a small group of genuine terrorists (al-Qaeda) and a considerably larger group of men (and boys) associated with the Taliban. The result is that men continue to be consigned to indefinite detention, on an apparently sound legal basis, even though they were only peripherally involved with the military conflict in Afghanistan to secure the fall of the Taliban, and should, all along, have been held (if at all) as prisoners of war, and protected by the Geneva Conventions.”

The painful repercussions of this fundamental misconception at the heart of the “War on Terror” (as maintained by President Obama) were particularly apparent in the case of Mukhtar al-Warafi (a medic excluded by Congress from the protections traditionally granted to medics in wartime) but in my article summing up the project, I concluded that the cases of Suleiman al-Nahdi and Fahmi al-Assani were actually the most emblematic, as both men were clearly soldiers, but, just as obviously, were not terrorists at all.

In the most recent ruling — that of Omar Mohammed Khalifh — it seems probable (although the unclassified opinion has not yet been issued) that this misconception was at work yet again, this time on a peripheral refugee who cleared mines for the Taliban. In addition, another recurrent theme — that of the torture or coercion of other prisoners or of the prisoners themselves to produce false confessions — also seems to have played a significant role, and as my coverage continues, I will continue to expose both of these crucial elements that undermine the validity of the habeas petitions denied by the judges.

The bitter truth, after 48 rulings, is that, although the 34 successful petitions accurately reflect the paucity of the government’s supposed evidence, and the frequency with which what little exists is undermined by revelations of its extraction through torture, coercion or bribery, the 14 petitions denied do not, for the most part, appear to justify the indefinite detention of the men in question. Eleven of those cases involved soldiers in wartime (or those supporting soldiers in wartime) and of the other three — Belkacem Bensayah, Hisham Sliti and Sufyian Barhoumi — only Barhoumi’s case seems to bear any resemblance to what might be legitimately defined as terrorism.

As the hunt for justice at Guantánamo continues, it is important to bear in mind that just 35 of the 181 prisoners still held, according to the Obama administration’s interagency Task Force, which reviewed their cases last year, will be put forward for a trial of any kind. Disgracefully, the Task Force also approved holding another 47 prisoners indefinitely without charge or trial, because they were judged to be a threat to the US, despite fundamental weaknesses in the supposed evidence against them.

The Task Force’s decisions were a direct snub to the authority of the District Court judges, as mandated by the Supreme Court, but as the habeas rulings continue, the position taken by the Task Force (and, by extension, by the President) is evidently being tested by the judges, who are not always convinced that the executive branch has reached the right decision.

A final showdown on these issues will not presumably happen until all the habeas cases have been dealt with, but in the meantime those who care about handing out something resembling justice to the Guantánamo prisoners already need to work out whose side they are on, choosing either a Supreme Court-approved process in which judges have demonstrated their ability to impartially assess the government’s supposed evidence, or an administrative review process, initiated by the executive branch, which justifies the prisoners’ ongoing detention behind closed doors.

For those anxious to bring to an end the Bush administration’s arrogant disregard for the law, and its love of unassailable executive power, the only valid conclusion is that the judges must be allowed to continue their work, and that the only area that needs fundamental questioning is the basis for detention as enshrined in the Authorization for Use of Military Force, which should be abandoned after the habeas cases conclude, and replaced by the rules that existed before 9/11 and that worked perfectly well: hold soldiers as prisoners of war, protected by the Geneva Conventions, and prosecute terror suspects in federal courts.

3 Responses

Thanks for all your hard, dedicated work, Andy. Your new dedicated page to the Guantanamo Habeas results is a fantastic idea, and I’ve already added a link to it on my home webpage.

I thought I’d mention that apropos of the issues you write of, the ICRC confirmed to BBC the other day that a second secret prison exists at Bagram. We knew of this Tor prison, or thought we did, but this is the first confirmation, as Obama’s administration refuses to say it’s true.

Making matters worse, three major news organizations — BBC, New York Times, Washington Post — have verified through their own investigations that torture occurs at Bagram, and especially so at the black site there.

I think the time has come to say what is, and that is that like the President that preceded him, Barack Obama is a torturing president, one who covers up the crimes of the military and intelligence agencies, and lies to the American people and the world about these policies. It’s not just about not looking backwards anymore, it’s about the affirmative prosecution of policies contrary to domestic and international law, of committing crimes against humanity.

[…] in Afghanistan, rather than in activities related to terrorism — is one that I have been railing against for some time now, for the simple reason that the former should be put forward for trials, whereas […]

[…] in Afghanistan, rather than in activities related to terrorism – is one that I have been railing against for some time now, for the simple reason that the former should be put forward for trials, whereas […]

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington